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October 8, 2004

Interesting morning reading

A few interesting newpaper articles on federal sentencing developments have my attention this morning. This article from the Oregonian reports on Judge Panner's dramatic decision in US v. Detwiler (discussed here with commentary here). The article partially confirms my concern that the distinct separation of powers issue which is the focal point of the legal ruling in Detwiler will be conflated with the Sixth Amendment issue now before the Supreme Court in Booker and Fanfan.

And speaking of Booker and Fanfan, this commentary at Bloomberg News does a nice job integrating a few quotes from this Monday's argument to explain what is before the High Court in these cases. I find notable that this commentary leads with the story of white-collar fraud offender Jamie Olis (whose case was briefly noted here); as I suggested here, I think a particularized concern for punishing white-collar fraud offenders has been driving the Acting Solicitor General's litigation strategy on the question of severability.

And speaking of white-collar fraud offenders, the Acting SG should be happy to see this article which details that at least one white-collar fraud offender won't be getting a "sentencing windfall" because of Blakely. The article describes in interesting detail the sentencing of a former manager of the Greater Springfield Entrepreneurial Fund who pleaded guilty in March to theft, money laundering and other charges. The article notes that the defendant was given the chance to undo his plea in the wake of Blakely, but he chose not to.

And speaking of sentencing windfalls, did Baltimore Ravens football star Jamal Lewis get such a windfall by being able, as this article explains, to make a plea deal to serve only four months' imprisonment on drug charges which could have led to the application of a 10-year mandatory minimum sentence?

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Please notice the very significant charges dropped in the two plea cases. 90 counts dropped in one and cocaine conspiracy and possession charges dropped in another (at very least 10 years). As I understand it, Olis was a mid level executive who pocketed no money but was convicted using his boss' testimony who pled guilty and provided testimony as part of his plea agreement. Obviously, in order for a significant sentence reduction (based on only the jury findings) to not be objectionable to the DOJ, the "windfall" must be at the full control and discretion of the DOJ or it is complete "chaos" and lawlessness ahead according to them. Also, doesn't this further support the USSC prediction that plea agreements will still be largely used post-Blakely and many will waive their "Blakely" objections in order to keep their very favorable plea agreements? If the DOJ negotiates it, it is considered appropriate and proportional to the crime- if based only on what the jury finds, they predict anarchy. Disgusting

Posted by: Non-Lawyer | Oct 8, 2004 2:41:44 PM

The bigger windfall for Lewis is the NFL's "sanction." Test positive for drugs, a four-game suspension. Help set up a drug deal, a two-game suspension. I imagine the difference in pay lost is substantial.